tv U.S. House of Representatives CSPAN April 7, 2014 8:30pm-9:01pm EDT
national >> you deal with a sort of netherworld. you have had your own run-in with federal authorities. does the shill not have any relevance to your life at all, or is it a kind of legacy media issue? >> one of the interesting things about this is that i never set out to be a national security reporter. i work on technology and culture and i have for many years. national security came over and started squatting on my lawn. so now i'm kind of transformed into partially a national security reporter because you guys took over my internet in early 2000.
it isn't super relevant, and i'm not totally clear on how well it covers it. anything can be national security at this point. said, i never intended to be a national security report and now kind of am. the same way that everything is technology at this point, everything is national security at this point. all these categories that served us well in the 20th century have gone very muddy. about the leak can be damaging to government operations, sometimes that damage comes from public accountability. that's exactly the kind of damage you want. the offer that the government is not the best arbiter of which operation should be damaged by public awareness. if public awareness is going to
damage something the government wants to do, in a democracy, that is supposed to happen. uighur sitting outside of that in the bestaybe not position, but we are in a better position. who elected us? the majority of people doing these things are not elected, either. they are overseen by very different embodiment of elected power. such a complex machine with so many moving parts, there are only two professions that i know of listed in the constitution, us and pirates. amendment.he same >> but we are both very special. athink we are also living at -- it was a journalist in the 1700s or 1800s that was delineated by who had a big machine and the motivation
to use it? now what this needs to be about, the protection of speech in journalism as a method of accountability for democracy. it needs to be about active anrnalism, not being stamped official journalist. people find themselves nowadays in the position of committing acts of journalism. they get help from professional journalist sometimes and they don't other times. that needs to be a position that is supported so the people who are in that position make better choices. when i look at not just wiki leaks but other places that have taken on the burden of what was once more traditional journalism , i don't see a system that should be adversarial to traditional journalism, it should be cooperative. we all have the same common goal, which is informing the making theing -- decisions the public is required
to make in a democracy. right now this is all kind of out of whack. because the things we are talking about, what we have to do to do our jobs. right now, i think i'm in a really interesting position with a chilling effect myself because i have taken a break from the active reporting because it is just so much work. i'm doing a lot more reflective and analytical work right now, and to be honest, that's because i just need down time. when you are reaching the edge of human capacity because of what you have to do in order to remain safe in your job, that is a significant chilling effect and i'm going to guess that every other journalist on this panel and possibly in this room could actually speak to that burden asthe actual well as the fear of all these procedures we have to use. does this protect me? not really. it doesn't go to the heart of the matter.
>> a very dispiriting lecture you could give is that journalism schools who still think there is some reason to go into this line of work. >> when you were talking before, you said your concern was that -- correct me if i've got this wrong, but even if the intentions of the legislation were fine, the language is as good as it could get, you were concerned about the way that an administration actually and laments this kind of legislation. >> that's right. i think we are coming here to an area where law and politics come very close together. there is clearly an element of political decision-making. my picking about this is formed by discussions i had with my mentor, a deputy attorney general. he described at one point a long series of cases under the ford
administration in which the intelligence community came to the justice department asking to tap the phones of reporters and in one case to break into an apartment. in other cases two assigned fbi agents to tail reporters, sometimes with the support of certain figures in the white house. don rumsfeld, dick cheney, no surprise. and tyler and leave the consistently explained no, that this shouldn't be done. it was a mistake. not that the law shouldn't give authority in exceptional circumstances to the justice system to take such steps, but that the attorney general, weighing the situation, has to take into account our entire political culture. you have to recognize the best part of the american tradition respects journalists and
journalist writes you investigate and bring out facts that are painful to the government, even those respecting national security matters. an importantere is element of political accountability, shared by the president and the attorney general. with thism legislation is a tendency to sort of mainstream the process, make it something pretty routine that goes through and then goes to a judge, and the judges making the decision. we can say that judicial check is the hallmark of democracy, alsohe political -- tyler raise with me a very serious concern he had about the way the justice department was being restructured. because at that time the division that ken was the first leader of the national security division was being formed. that as a very serious structural error. you have a division within the department of justice that was working effectively as a
walkaround for the intelligence community and would be there advocates within the justice department. so these requests i'm a which frequently -- were now going to come with the imprimatur of assistant attorney general with support of the staff. the big concern was that it would change the dynamics of the process, which would lead to more prosecutions and war subpoenas and more surveillance of journalists than was appropriate or healthy. i think that was completely prescient, that is what has happened. the structural element is largely the reason why. >> i realize you are not here as the surrogate for senator schumer. >> no pressure on me. as a strong proponent of this heard that, you have this bill goes too far and from everybody else that he does not
nearly far enough. that is an indication that it probably strikes the right balance. >> come on, that is a journalistic an hard -- canard. >> if you don't like to bilk him the question is, do you like the current situation? >> do you agree with senator schumer there is a reasonable chance that this -- >> i do. >> the judge would waive the balance and decide the stories he wrote was of significant public value and the damage to national security was commensurately less. >> i think there's actually different reason. case, context of the leak
it first deals with properly classified information. second, it looks forward. the government gets to ask for your testimony only if it can prove there is specific harm to the national security that it will either prevent or mitigate. it is really looking forward at preventing harm. jim arrives and is writing a jim rison is writing a book about a leak that occurred in 2003 about a country -- iran is very different than it was then. is difficult to see how the government can prove there is national security harm that stems from that leak. >> what about by trying to prevent future leak? that seems to be a major deterrent. there is a specific provision in the bill that says that cannot be used to demonstrate harm to national security. me, is an indication we've got a pretty good shot and
if we can get applied to jim's case, it would be efficient in keeping him out of jail. in terms of the national security piece, another thing to remember is, every confidential source is not international security case. there are at least as many and perhaps more journalist who have put in jail in civil litigation for money damages arriving out of claims against the u.s. government. lee case several years ago, there were six journalist held in contempt, including journalist from cbs, new york times, washington post, and ap. one was held in contempt and subject to $5,000 a day she was notat allowed to ask usa today to pay for her. she had an offer from her students to hold a bake sale so she could help pay her contempt fines, which i thought was charming but ineffective.
she almost certainly would have been held in contempt and gone to prison in a similar case for money damages had that case not settle. the reporter for the detroit free press is still litigating a privacy act case where he was held in contempt. a point when david had to decide, or may have had to decide whether to go to prison in the same week he was winning a pulitzer prize for his recording -- for his reporting. there's something fundamentally wrong with that situation. in terms of civil suits, this bill would not just take a step for the problem, it would fix it. there'd be no further confidential source cases coming out of civil litigation for money damages that would be effective if it passes. there's a whole range of things i would be highly productive for journalism as a whole even outside the national security
context. >> just introduced a devil's advocate voice from the beyond, since you mentioned the win ho lee case. there are some very distinguished members of the journalistic love who are skeptical of the shield law. anthony lewis was one of them, a great journalist and columnist and self-taught scholar of the constitution. he thought specifically of the case of wen ho lee, scientist who was accused of possibly having leak secret technology. , as hes a case where would have put it, inadequate journalism tarnished this man's reputation, ruined his life. why should the journalist be protected from helping him get some compensation for that? >> if you look at the balance of interest overall and whether you can actually get sources and ,ther types of investigations
my view has been that it's more important to protect the confidential source relationships in terms of future reporting than to say we're going to force the reporters to the meritscause of of a particular case. the problem with that is once you force reporters to test or they can be jailed, that sends a broader signal to sources and it really creates the kind of chilling effect that jonathan was talking about. >> do you want to respond to any of this? >> a couple of things. yout, it is true that if are a reporter, you are served with a subpoena, your testimony is demanded and you refuse in litigation, you could face contempt and that could end up putting you in jail if you refuse. that would happen to me if i didn't want to testify about my neighbor. happen to any american
who refuses to provide information in a criminal or civil proceeding. the question is whether because of the first amendment, reporters are -- deserve special protection. you have to remember that everybody else doesn't have that protection. so it still goes back to the fundamental question about transparency versus security. do we want to have a system whereby someone can leak and really the person who is in the best position to tell the prosecutor who the leaker was is off-limits. i understand the rationale for it. i understand that there should be a check on it. my position is that there is a suitable check right now and it is a self-imposed check. >> what do you mean, a self-imposed check? >> if you look at the record of the justice department in terms of how often they subpoena reporters would write you mean the restraint of the justice department who regrets if
there's a situation where subpoenas are coming out every day, where reporters are prosecuted, if it is a situation contempt and jail terms were imposed on a regular basis, i would see a much stronger argument for a shield wall. the reality is it that you don't see that right now. the fact that no reporter has ever been prosecuted in the history of this republic and never has to worry about being prosecuted, the attorney general has said he would never do that. i cannot work -- i could never imagine it happening. the ones where there's something particularly egregious and has gone on, i think that is the best evidence that right now the calibration between transparency and security in the investigative prosecution realm is being struck pretty well. i agree with the point that one thing you might -- one result of this might be that this is now
put on a judge. if the judge says ok, fine, that subpoena is ok because it meets the needs of this action. in some ways that does undermine the political accountability. if you are senior justice official, you are thinking about what the political accountability is for you and the administration. -- know that the person members of the press have a web getting their side of the story out. look at the ap situation where a 20poena was issued for something lines for the ap reporter come there may be questions about whether that was overly broad, but in terms of what they did, how they investigated the case fully, they got the records and ended up getting a conviction out of the case. a lot of people would say that is the weather system on to work. given that ended up with the huge firestorm. the administration on their and that i think is a good measure of the political
accountability that does keep the justice department in check. i wonder if you start putting this in the lap of a judge, that in some ways might undermine that political and -- political accountability. it has held the justice department in check for over two centuries. >> you are talking about formal cases, prosecution where subpoenas are issued. we know that at least until two -- 2006, the fbi was going and collecting information, telephone information from journalists. the new york times got collected because thecame out justice department inspector examination to the and examine that. , the officeof that of legal counsel decision basically said the fbi has the power to collect this kind of information without a formal court ruling, without any kind of subpoena. they just haven't used it yet.
2006, whenred since we learned about this, that they have never used that power, but i don't think there's ever been a case where they have actually said we never going to use it in any form of restraint. opinion actually says they can do this, they just haven't yet. the point of numbers, and this is always difficult because i think in our view, the justice department always under reports the number of subpoenas. they didn't report for example a subpoena that put judy miller in jail and almost put matt cooper in jail because it said it was done by an independent prosecutor and not the department of justice. they also tend not to report subpoenas in the field. there's a study that instead of looking at self reporting went the other way and ask journalism
outlets how many did you receive in the same year. the department of justice said it was 19, and it came out to be 67. so there is the numbers game. , the u.s. mind , they knewr 15 years it was coming. they agreed they would receive it and satisfied. that was for outtakes from a newscast. that was not source related information. 67 --ight be the over the course of history. the thing that is surprising to me about that. the attorney general of the united states has to personally certify and approve that. skeptical that
there are 41 ago subpoenas issued and the justice department is somehow not capturing that. aside, i know the justice department takes it seriously. we are a big fan of the internal rule that the justice department has and in terms of the political accountability point, the current draft of the shield you'll actually build a minute says the attorney general has to certify that the rules have been complied with for that political accountability point to try to maintain the discipline that has grown up over the years within the department on that point. enhanced with the new guidelines it just recently came out. theoes address a couple of main things that have people riled up over the last year, the use of the carveout with the rosen situation and also the notice issue that was front and center after the ap situation.
it expressly addresses both of those concerns. to just apply to telephone records and now it is broader.r -- i do find a director of national intelligence part to be troubling. the fact that they have now sort of gone to a definition of ordinary newsgathering for the applicability of the guidelines rather than just newsgathering is concerning to me. i hope there will be further improvements. what is ordinary newsgathering in an era where some people called journalists accomplices to their sources? >> this kind of gets to a little bit about -- for me, the biggest problem with something like a shield law is that we are getting to the point where we don't really need a subpoena. i am in a class of people who surveilled, and it is hard for me to know
whether or not i've already given up my sources. are the measures that one takes to guard against that -- i heard from an earlier panelist that may be using encryption does outibly -- does it take you of ordinary newsgathering if you're trying to protect her sources? are you more of a target? i don't think anyone can adequately answer that. i don't expect to ever see but i would love to see some legislation that recognizes that the techniques of surveillance are chilling to journalism and addresses that. >> you were saying before when we were talking that we are now in a realm where in order to protect your sources, you often don't know who they are. that is probably not the case in jonathan's reporting. anonymous and hackers. >> i reported extensively on anonymous.
let me make something very clear. most of anonymous are not criminals and never break any laws. they are engaged in speech acts and messing around. speech acts and pranks. when i work with a specific group, which at the time was infiltrated by the fbi, they were specifically trying to commit crimes. so in order to work with them in a way that was safe, knowing this wasont, believing newsworthy, which i believe are covered supported over time, these were very much politically were all crimes and we really clear that they were crimes. i had to design coverage in which i could verify the back using outside experts, looking through data, and using timing and other techniques and building relationships with people without ever knowing who
they are. in fact, with many of my sources , we would have the kind of conversations when you're building trust with a source. if they started giving me too much identifying information, i would stop them. i had a rule where if i knew who you were, i wouldn't talk to them anymore. a lot of it was about not being able to respond to a subpoena. start using encryption when you are talking about something interesting is a terrible idea. i use encryption when i chat with my 11-year-old daughter. i can stand in front of a judge and say encryption is my norm. there's nothing extraordinary about any conversation that was encrypted. all this was designed and vetted by law years to keep me safe and to keep my sources say. as i have no particular interest in going to jail to protect my sources. >> in the wider world outside of this auditorium and the world of
people who practice journalism, i think people often have a hard time making it -- making a clear, moral distinction between leakers and journalist. from thepeople i know wikileaks experience revere julian assange, but they also revere bradley manning and think he is a hero. a lot of people not only admire what journalists who were here earlier do but think that edward snowden is a hero. i guess the question is -- and to those people, a group of journalists sitting around talking about how the law should protect journalists but not those other guys, it sounds self-serving. as journalist, do we have some obligation to advocate stronger protections for leakers/whistleblowers? all, her name is
chelsea manning. i think the first incumbent duty on us is to make sure that our sources are entering into relationship of informed consent. with many of the encryption , i think it is more important that my sources know how to use it than that i do. to some degree i need to know how to use it so i can teach sources out to use it. of newsaily gathering are working a story, i don't have a chance to push for legislation, but i do think if i explained that informed consent, if i explain the status of my sources, i give the public the opportunity to weigh in on that question in a useful way. with my sources, in some cases, i do think there are probably forms of leaking that should be better protected. in some cases it is clear that
have set out to commit a crime. and i don't really feel like i am welcome to weigh in to some degree to say whether or not they have made a determination. face computer who fraud abuse charges based on from a technical point of view what was fairly routine information gathering. that is separate from a lot of what we are talking about right now where the law is really out of control. yes, when fairly routine technical things can be called felonies, i have advocated publicly for reform of that law because it is just not coherent at this point. working with someone who is specifically an anarchist, setting out to make a point about the government, i build
that into my coverage. i don't want to just give them a blank passport, although i do think that there are many views that are represented and it's part of news as well. more than anything, when i am turning to that source, i need to make sure they understand where their legal protections are and are not. it is really important for journalists to learn enough to be able to educate their sources so their sources can make that decision and not get surprised by what happens next. a huge problem right now. recent developments in the snowden case and a number of others really show that the whistleblower process doesn't work. it is broken completely. from a journalistic perspective, there is valuable information ,eing provided about ineptitude stupidity, criminality, corruption periods at public and congress -- criminality and
corruption. it is just as good for that to come out on hearings in capitol .ill as through publications and leakspublications of that form should be a fallback in our democratic system. the fact of the matter is the whistle lowers have been short-circuited. it doesn't work anymore. whistleblowers who would have gone to the senate committee or the house committee feel they are going to be observed the minute they go there. they will view them as traders. they will be spied upon. have something that rises to the level of a constitutional crisis that does seriously impact the way we work and gives unfair advantage to os